Do You Need Legal Representation in Your Miami Guardianship Case?
Are you involved in Miami guardianship litigation? Are you a family member trying to become the guardian or prevent someone from being guardian? If you understand the difference between an “elder law attorney” and a serious guardianship trial lawyer, you are on your way to understanding Florida guardianship law! http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/0744.html
Adult Guardianships in Miami-Dade
At Pankauski Hauser Lazarus, we handle many guardianship cases throughout Florida. When people hear the word ” guardianship”, they tend to think of minors. However, our firm handles guardianships over adults, not minors.
Adult guardianships in Florida are frequently filed by friends or family. Sometimes they believe that someone is incapacitated and can’t care for him or herself. For example, a daughter may choose to file for guardianship of her mom who is struggling from severe Alzheimer’s or dementia. In certain circumstances, adults may be deemed incompetent, or in need of a guardian. Sometimes a disability or mental illness is preventing them from being able to carry out daily life tasks and/or make financial decisions.
Miami guardianship lawyers know that guardianship law is governed by Chapter 744 of the Florida Statutes. If you are involved in guardianship litigation in Dade County or anywhere in Florida, you should refer to this chapter of the Florida Statutes. You should also consider interviewing an experienced Miami guardianship lawyer.
There are different types of adult guardianships in Florida. Your Florida lawyer can tell you that there are limited guardianships and plenary guardianships. A limited guardianship allows a guardian to handle only certain aspects of life for the Ward (person deemed incompetent). For example, the guardian may be limited to making financial decisions for the ward. The Florida probate judge is the one who decides the limits.
If the Florida judge decides that the Ward needs more protection than a limited guardianship can provide, a plenary guardianship may be necessary.
Plenary guardians are awarded complete control over the life of the Ward. A plenary guardian makes day-to-day and financial decisions for the Ward because the Ward was found to be unable to care for him or herself.
Having a guardianship appointed over someone is a big deal because guardianships can take away certain rights from a Ward. Therefore, Florida probate judges take guardianships very seriously. If you are involved in a Miami guardianship matter, it is important to hire an experienced lawyer to assist you.
Florida Statute 744.331 (2)(b) gives trial judges in Florida guardianship proceedings a mandatory obligation to appoint a guardianship attorney to represent the AIP.
A Miami lawyer appointed to represent an AIP is entitled to reasonable fees. These fees are paid from the property of the ward or, if the ward is indigent, by the state.
Florida Statute 744.331 also provides that an AIP may choose to substitute the court appointed lawyer with his or her counsel of choice.
Substitution of Guardianship Counsel in Florida
A person has a right to hire his or her own lawyer at any time unless it has been determined, by a Florida probate judge, that he or she is not competent to do so. This means that, an AIP can choose to hire whichever lawyer they wish, even if a different one is appointed. However, once a person is officially deemed to be incapacitated, it all changes.
What if you are the person petitioning for a guardianship over someone, not the AIP? A court appointed lawyer will not be appointed for you. You will need to interview and hire a Florida guardianship lawyer.
Erlandsson v. Guardianship of Beth Ann Elisa Erlandsson
This March 6, 2020 Fourth DCA opinion is a great example of a Miami guardianship case where the AIP wished to hire counsel of her choosing. She was not properly represented by her court appointed attorney.
Here, the AIP was blatantly opposed to the guardianship. She clearly indicated, more than once, that she was dissatisfied with her appointed lawyer and wanted to substitute appointed counsel. Her court appointed lawyer did not present evidence or cross-examine certain witnesses to help her case. In fact, the lawyer argued IN FAVOR of the plenary guardianship, which was the opposite of what the AIP, the lawyer’s client, wanted.
The Florida appellate court explained that “even if the attorney thinks the guardianship would be in the client’s best interest, the attorney whose client opposes guardianship is obligated…to defend against the guardianship petition.”
If you are in need of a Florida guardianship attorney to represent you in a Miami or West Palm Beach guardianship matter, call (561)279-6344 ext.101 for a FREE consultation.